Landmark
Medical Center terminated Kayleigh Bellisle from her
employment as a registered nurse after it investigated
several reports of inappropriate behavior by her including:
dyeing her hair during a work shift, swearing at and
harassing fellow employees and patients, using a cell phone
at the nurses' station in contravention of hospital
policy, and possessing an illegal weapon[1]- a stun-gun - at
work. Her union, United Nurses & Allied Professionals, Inc.
("Union") provided representation during the
disciplinary and termination process in accordance with its
role set forth in the collective bargaining agreement
("CBA"), and the parties eventually settled Ms.
Bellisle's grievances by agreement.

Ms.
Bellisle sued Landmark, Landmark's owner Prime Healthcare
Services-Landmark, LLC, and two Landmark employees, Charlene
Elie and Glenn Miller, charging them with various
discrimination and retaliation claims as well as state law
tort claims. She alleges that Defendants subjected her to a
hostile work environment and ultimately terminated her
because of her sexual orientation and that she was retaliated
against after taking an approved medical leave of absence.
Ms. Bellisle has also sued Union for failing properly to
represent her in breach of the terms of CBA during the
several grievance procedures following her disciplinary
actions. All Defendants have moved for summary judgment.
Because the Court finds that it is undisputed that Landmark
terminated Ms. Bellisle because of inappropriate conduct, not
her sexual orientation, and that Landmark did not retaliated
against her or subject her to a hostile work environment, the
Landmark Defendants' Motion for Summary Judgment (ECF No.
33) is GRANTED. The Court GRANTS the Union's Motion for
Summary Judgment (ECF No. 36) as well.

FACTS

On
March 5, 2012, Landmark hired Ms. Bellisle to work as a
registered nurse in its Progressive Care Unit. Several months
into her employment, Ms. Bellisle discovered that she was
pregnant and took a four month medical leave of absence. Upon
her return, she requested and received a transfer to the
Emergency Department.

Sometime
in September or October of 2013, Ms. Bellisle claims that it
became known at Landmark that she is a lesbian and she
believes that her problems at work began with that knowledge.
Ms. Bellisle reported to her supervisor, Melissa Frias, that
her shift supervisor was treating her poorly. Ms. Frias
notified the human resources department about Ms.
Bellisle's complaint and as a result, the shift
supervisor was informed about standards for behavior at
Landmark. Landmark did not conclude any wrongdoing because it
could not substantiate Ms. Bellisle's complaint.

During
the course of her employment, Ms. Bellisle and her co-worker,
Defendant Glenn Miller, engaged in several text message
exchanges discussing Ms. Bellisle's relationship with her
girlfriend and her interactions with other employees at
Landmark. The messages included a string of scissor
emoji's that Ms. Bellisle indicates is a lesbian symbol.
Ms. Bellisle alleged that Mr. Miller made two offensive
comments about her sexual orientation in the text message
exchanges. Ms. Bellisle told Mr. Miller that the comments
were offensive, but she did not report this to anyone at
Landmark.

On
January 5, 2014, while she was working the night shift, Ms.
Bellisle dyed her hair in the sink of the hospital's
break room. Dr. John Jardine, who observed this behavior,
reported the incident to Ms. Bellisle's supervisor,
Melissa Frias. The next day, Ms. Frias met with Ms. Bellisle
to discuss Dr. Jardine's report. Ms, Bellisle admitted to
dyeing her hair, but asserted that she was on an unpaid
break, even though she also admitted that she did not notify
anyone that she was taking a break. Landmark considered
terminating her, but instead gave Ms. Bellisle a written
warning. Represented by the Union, Ms. Bellisle grieved the
discipline because she argued that the break was
unpaid.[2] Landmark's chief nursing officer,
Charlene Elie denied the grievance at step two, A few days
after the hair dyeing discipline, Ms. Bellisle e-mailed Ms.
Frias that she would be unable to work because her
daughter's father had passed away. She then e-mailed the
president, human resources director, and chief nursing
officer to report her belief that on a number of occasions
Dr. Jardine communicated with her less than he did with other
employees because of her sexual orientation. Ms. Elie
responded to Ms. Bellisle's e-mail and informed her that
Landmark would conduct an investigation. Approximately a week
later, Ms. Bellisle dropped her claims of discrimination
against Dr. Jardine while continuing to maintain that he had
treated her in an unprofessional manner. Afterwards, Landmark
instructed Dr. Jardine to communicate with Ms. Bellisle in a
professional manner.

After
returning from a one-week leave, Ms. Bellisle sent an e-mail
to Ms. Frias stating that she felt that her co-workers were
subjecting her to harassment and discrimination because of
her sexual orientation. She based this on the fact that she
overheard staff speaking about her sexual orientation. Ms,
Frias forwarded the e-mail to human resources for further
investigation.

On
January 15th, several hours after she was disciplined for the
hair-dyeing incident, Dr. Jardine and Ms. Frias observed Ms.
Bellisle using her cell phone at the nurses' station, in
violation of Landmark's personal communication device
policy. The prohibition on cell phone use had been discussed
at a staff meeting five days earlier. Ms. Bellisle singed
that she received a copy of the cell phone prohibition
policy. Landmark issued Ms. Bellisle a second written warning
for violating this policy. Although she declined union
representation, the Union filed a second grievance at step
two in response to Landmark's disciplinary action, In
February 2014, Ms. Frias received a few reports that Ms.
Bellisle was verbally abusive to co-workers and patients.
First, Mr. Frias received a report that after getting into an
argument with a doctor, Ms. Bellisle berated him to other
staff members. Second, a co-worker informed Ms. Frias that
Ms. Bellisle was arguing loudly with a psychiatric patient
and when confronted, Ms. Bellisle stormed out of the room.
Third, Landmark's risk manager informed Ms. Frias that a
patient's family called to complain that she heard Ms.
Bellisle telling a patient, "Shut up, shut up! You did
this to yourself. You are a cocaine addict." Lastly, a
fellow nurse observed Ms. Bellisle swearing at a doctor in
front of a patient. Landmark supervisory personnel were
preparing a third warning to Ms. Bellisle about her behavior
when Landmark terminated her employment for the incident that
ultimately became the straw that broke the camel's back.

That
same month, a Landmark employee reported that she observed
Ms. Bellisle with a taser while at work at the hospital. Ms.
Bellisle denied bringing the weapon to the hospital, yet she
had posted to her Facebook page, "I think it should be
legal for nurses on duty to carry tasers . . . many animals
out there these days." Landmark conducted an
investigation, in which three employees reported that they
observed Ms. Bellisle possessing a taser at the nurses'
station. Landmark concluded that Ms. Bellisle had brought an
illegal weapon to work. It terminated her employment, Ms.
Bellisle's union representative filed a grievance at step
three in response to the termination, The grievance process
proceeded for several weeks. Ms. Bellisle became impatient at
the pace of the process. Ultimately, in April 2014, Ms.
Bellisle, the Union, and Landmark signed and executed a
Memorandum of Agreement whereby Ms. Bellisle voluntarily
resigned from Landmark and Landmark agreed not to object to
her application for unemployment benefits. Ms. Bellisle and
the Union agreed to withdraw any pending grievances from
arbitration with prejudice.

Rule 56
of the Federal Rules of Civil Procedure governs the process
of summary judgment. Summary judgment is appropriate when (1)
the moving party demonstrates the absence of any genuine
issue of material fact and (2) the non-moving party fails to
demonstrate that a trier of fact could reasonably resolve
that issue in the non-movant's favor. Borges ex rel.
S.M.B. W. v. Serrano-Isern,605 F.3d 1, 4 (1st Cir.
2010). "[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact." Anderson v. Liberty Lobby,
Inc.,477 U.S. 242, 247-48 (1986). Even in cases where
motive and intent are at issue, the court may grant summary
judgment if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported
speculation. See Medina-Munoz v. R.J, Reynolds Tobacco
Co.,896 F.2d 5, 8 (1st Cir. 1990); Rossy v. Roche
Products, Inc.,880 F.2d 621, 624 (1st Cir. 1989).

The
Court views the evidence submitted in the light most
favorable to the non-moving party and draws all reasonable
inferences in her favor. Wilson v. Moulison N.
Corp.,639 F.3d 1, 6 (1st Cir. 2011).

ANALYSIS

A.
Hostile Work Environment Claim under Title VII, RIFEPA, and
RICRA Counts I, VI and VII

Ms.
Bellisle alleges that Defendants Landmark and Prime created a
hostile work environment by allowing several employees to
harass, stereotype, and mistreat her based on her sexual
orientation. Ms. Bellisle alleges that this discriminatory
behavior resulted in unfounded discipline and termination.
Not unexpectedly, Landmark and Prime object and move for
summary judgment because they argue that Ms. Bellisle was not
subjected to an abusive work environment, but was disciplined
for inappropriate behavior and ultimately terminated for
possessing an illegal weapon at the hospital.

Under
these state law claims, in order to meet her burden to prove
that she endured a hostile work environment based on
prohibited discrimination, Ms. Bellisle must establish the
following prima facie elements: (1) that she is a member of a
protected class; (2) that she was subject to unwelcome
harassment; (3) that the harassment was based on her
membership in a protected class! (4) that the harassment was
sufficiently severe or pervasive so as to alter the
conditions of the plaintiffs employment and create an abusive
work environment; (5) the harassment was both objectively and
subjectively offensive; and (6) there exists ...

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